United States District Court, D. Nevada
ORDER RE: MOTION TO PROCEED IN [PSEUDONYM] (ECF NO.
FOLEY, JR UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiffs' Motion for
Leave to Proceed in Pseduonym (sic) (ECF No. 49), filed on
July 6, 2017. Defendants filed their Response (ECF No. 54) on
July 11, 2017, and Plaintiffs filed their Response (ECF No.
57) on July 25, 2017. The Court conducted a hearing in this
matter on August 4, 2017.
Plaintiffs, “Randi Alexander” and “Jackson
Young, ” are suing under pseudonyms. “Randi
Alexander” is a pen name for an individual romance
novelist. “Jackson Young” is a stage name for an
individual professional model and country music performer.
Complaint (ECF No. 1), pg. 1, n. 1. Plaintiffs
allege that they have been defamed by Defendants Kathryn
Falk, Romantic Times, Inc. and Jane Doe/Gracie
Wilson. According to the complaint, Randi
Alexander is a renowned author of romance novels and Jackson
Young is a well-known model who poses for various depictions
of romance novels and themes, and is also an up-and-coming
country music entertainer. Id. at ¶¶
18-20. Defendant Wilson is also a romance author. Defendant
Falk is a romance novel promoter and the chief executive
officer of Romantic Times, Inc. which publishes a magazine
specializing in romance novels and related book reviews.
Defendant Falk and Romantic Times have substantial
involvement and influence in the romance novel market and
host the annual RT Booklovers Convention, which was held at
the Rio Hotel & Casino in Las Vegas, Nevada between April
12 and 17, 2016. Id. at ¶¶ 22-25.
allege that during the April 2016 convention, Defendants
Wilson, Falk and Romantic Times began or continued a
malicious campaign to defame and disparage Alexander and
Young. Falk and Wilson allegedly made false statements to a
group of convention attendees, including romance novel
authors and publishers, that: (a) Alexander and Young were
involved in secret, inappropriate, illicit, salacious, and
scandalous relationships with each other and third parties;
(b) were blackmailing publishers and others into using and
promoting Plaintiffs' goods and services; (c) Young was a
predator; (d) Wilson was living in fear because of
Young's threats to her; (e) Young had other victims; (f)
Young sent inappropriate text messages to various authors,
including a big name author whose husband became aware of
texts and made threats against Young; (g) Young fraudulently
obtained money from authors for services he did not perform;
and (h) Young was blackmailing Alexander by using details of
their supposed inappropriate relationship to keep her in a
business partnership. Id. at ¶¶ 26-28.
allege that the defamatory campaign continued after the
convention. Wilson allegedly posted defamatory statements
about Alexander and Young on Facebook, purportedly confirming
the rumors spread at the convention. Wilson stated that Young
was a predator and she was in fear of him. An employee of
Romantic Times spread Young's name via private messages
as a predator. Wilson also allegedly made statements implying
that Young was the person who had assaulted her outside her
home in October 2015. Id. at ¶¶ 29-37.
Plaintiff Young alleges that as a result of the
Defendants' defamation campaign, promoters of concerts
cancelled his scheduled appearances or informed him that they
would no longer have an association with him. A book
publisher also cancelled a photo shoot with Young, allegedly
as a result of defamatory statements made by Defendant Falk.
Young alleges that due to the fallout, he was forced to shut
down his social media and website. Id. at
¶¶ 38-44. Plaintiff Alexander alleges that her
reputation has suffered as well, and that she has lost out on
business contracts, relationships and opportunities.
Id. at ¶ 46. Plaintiffs allege claims for
violation of the Lanham Act-Trade Libel/Commercial
Disparagement, Lanham Act-False Advertising, common law
business disparagement/trade libel, defamation, false light,
intentional interference with contractual relations and
prospective economic advantage, intentional infliction of
emotional distress, negligent infliction of emotional
distress, fraud/deceptive trade practices, and civil
request permission to continue to prosecute this action under
their professional pseudonyms because they fear that if their
true names are disclosed to Defendants or become publicly
known, they will be subjected to harassment and abuse
touching on their personal lives which they have kept
separate from their professional identities and activities.
In support of their motion, Plaintiffs have submitted
exhibits showing comments posted on the Romantic Times
Facebook account in early May, 2016 in response to a post
from an individual who stated that “a certain
cover-model has been removed from the group due to multiple
allegations of abuse and blackmail. Anyone feeling the need
to jump to his defense can certainly do so but I'm not
letting him back in.” The responses included a May 3,
2016 post from Defendant Falk which stated that Plaintiff
Young was banned from any RT events. The other posts in this
exhibit were made on May 3 and 4, 2016. Reply (ECF
No. 57), Exhibit B.
also attached posts from the Facebook account of Defendant
Wilson made in early May 2016 setting forth the manner in
which she had allegedly been harassed by Plaintiff Young. The
comments in response to Defendant's Wilson's posts
also appear to have been made in early May 2016. Id.
at Exhibit F. In March 2017, Defendant Wilson posted
a request for donations to help her retain counsel to defend
this lawsuit. Id. at Exhibit A. In that
post, Defendant Wilson repeated allegations that she had
previously made against the Plaintiff Young in May 2016. This
post drew several contributions from individuals who
indicated their sympathy and support for Defendant Wilson.
August 7, 2017, the Court entered a stipulated interim
protective order which authorizes Plaintiffs' counsel to
disclose Plaintiffs' true names and other personal
identifying information to Defendant's counsel, on an
“attorney's eyes only” basis, to facilitate
obtaining relevant documents and information during
discovery. Defendants' counsel, however, is precluded
from providing Plaintiffs' true names and personal
identification information to his clients or the public
pending a decision on the instant motion. See Order
(ECF No. 62).
plaintiff's use of a fictitious name runs afoul of the
public's common law right of access to judicial
proceedings and the requirement of Fed.R.Civ.P. 10(a) that
the complaint include the names of all the parties. Does
I Thru XXIII v. Advanced Textiles, 214 F.3d 1058, 1067
(9th Cir. 2000) (“Advanced Textiles”)
(citing Nixon v. Warner Communications, Inc. 435
U.S. 589, 598-99, 98 S.Ct. 1306 (1978) and EEOC v.
Erection Co., Inc., 900 F.2d 168, 169 (9th Cir. 1990)).
In Doe v. Kamehameha Schools/Pauahi Bishop Estate,
596 F.3d 1036, 1042 (9th Cir. 2010), the court stated that
“[t]he normal presumption in litigation is that parties
must use their real names. . . . This presumption is loosely
related to the pubic's right to open courts, . . . and
the right of private individuals to confront their accusers.
. . .” Id. (citations omitted). The Eleventh
Circuit has also stated that Rule 10(a) “protects the
public's legitimate interest in knowing all of the facts
involved, including the identities of the parties. . . . This
creates a strong presumption in favor of parties'
proceeding in their own names. Defendants have the right to
know who their accusers are, as they may be subject to
embarrassment or fundamental unfairness if they do
not.” Plaintiff B. v. Francis, 631 F.3d 1310,
1315 (11th Cir. 2011) (internal quotation marks and citation
omitted). The Eleventh Circuit also quoted Doe v.
Smith, 429 F.3d 706, 710 (7th Cir. 2005), in which the
plaintiff sued her ex-boyfriend for illegally distributing a
videotape of them having sex when the plaintiff was a minor.
The Seventh Circuit noted that plaintiff had denied defendant
the shelter of anonymity in bringing her lawsuit, and
“yet it is [defendant], and not the plaintiff who faces
disgrace if the complaint's allegations can be
substantiated. And if the complaint's allegations are
false, then anonymity provides a shield behind which
defamatory charges may be launched without shame or
have nevertheless permitted parties to proceed anonymously
when special circumstances justify secrecy. Advanced
Textiles, 214 F.3d at 1067. A party may be
permitted to use a pseudonym “in the ‘unusual
case' when nondisclosure of the party's identity
‘is necessary . . . to protect a person from
harassment, injury, ridicule or personal
embarrassment.'” Id. at 1068-69. The court
must balance the need for anonymity against the general
presumption that parties' identities are public
information and the risk of unfairness to the opposing party.
Id. (citations omitted). Plaintiffs have been
permitted to use pseudonyms in three situations: (1) when
identification creates a risk of retaliatory physical or
mental harm; (2) when anonymity is necessary to preserve
privacy in a matter of sensitive and highly personal nature;
or (3) when the anonymous party is compelled to admit his or
her intention to engage in criminal conduct and thereby risk
criminal prosecution. Id. (citations omitted).
cases where a pseudonym is used to shield the anonymous party
from retaliation, the district court should determine the
need for anonymity by evaluating the following factors: (1)
the severity of the threatened harm; (2) the reasonableness
of the anonymous party's fears; and (3) the anonymous
party's vulnerability to such retaliation. Advanced
Textiles, 214 F.3d at 1068. As examples of plaintiffs
who are particularly vulnerable to retaliation, the court
referenced children plaintiffs or a prison inmate who served
as a government witness. Id. (citing Doe v.
Stegall, 653 F.2d 180, 186 (5th Cir. 1981) and
United States v. Doe, 655 F.2d 920, 922 n.1
(9th Cir. 1981) (“Doe II”)). The court
The court must also determine the precise prejudice at each
stage of proceedings to the opposing party, and whether
proceedings may be structured so as to mitigate that
prejudice. See James, 6 F.3d at 240-41 (evaluating
defendant's assertions that plaintiffs' use of
pseudonyms would prejudice the jury against the defendants
and would impair defendant's ability to impeach
plaintiff's credibility). Finally, the court must decide
whether the public's interest in the case would be best
served by requiring that the litigants reveal their
identities. See Stegall, 653 F.2d at 185